Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-11-30
DECISION.
[ Continued From First Page.

|. In Barlow W.. Daniels, - W. Va,
5l2, this Court held that tie judgement OF
a Justice rendered upon the verdict OF a
Jury could not be tried de moro by the Cir
cult Court upon appeal under the p;oyiSions
OF chapter :, Acts Of ISL, which Is the
same as chapter 30 Of OuG amended Code,
because said provisions Of the statute were
in conflict with section -, Act III OF our
Constitution, in which in which 1t Is de-
clar,d that mo tac: tried by = jury shall
be otherwise Te-eXarniued in any cas-" than
according to the rules OF the common law.
According to the common law the luig
ment OF a Justice could not he reviewe'i
for the reason that such writ lay only from
Il Judgment or proceeding N court o!
record, aud by that law Justices courts
were not courts OF record. The only
statute in this State which authorizes the
review of the judgment Of a Justice in
any case by motion, appeal, writ Of error,
SUp,ywd,dS, or any other manner IN the
Circuit Court IN Chapter 8, Acts lcol, As
above referred TO, which this Court has
declared imperative as to Judgments OF
justices rendered upon the verdict OF a
Jury. IL, therefore, follows that III this
State there is no node provided, either at
the common law Or BE- statute, by which
such Judgment OF justice can ne re,
viewed b. the Circuit Court, except chap
ter 10 of our amended Code, which doe
in terms authorize snch reviews IN such
cases by writ OF certiordri
=. Is said chapter 10 oil the Code con-
stitutonal? The constitutional provisions
lust above quoted expressly declares
that ogpedls sl0H be- dEOCSi from
judgments ofiusticas of the peace in such
manner as mag be prescribed by law" This
provision
POSITIVELY COMMANDS
that appeals from judgments OF Justices
shall BE- dliorcd, and 1t expressly authorizes
tine Legislature to prescribe the manner IN
which they shall be allowed. The statute
under consideration was enacted in very
short time after said Constitution was
adopted, and it has prescribed no other
effective mode by which Judgments OF JUS
tices of the character now before us can be
reviewed, il is the duty OF the Courts II
they can do consistently with the legal
rules of Interpretation, to Construe this
statute rs giving the Circuit Courts such
mowers of review. The only difficulty IN
Giving such construction is the use OF the
word appeal" in the Constitution instead
Of the common law terms writ OF error
OF "c,rtiorari" The term appeal was
unknown II the common law. II belongs
wholly to counts Of ch!ucery, and meaos
in its technical and appropriate sense
the removal of suit and final deter
mination from an inferior Court after
final Judgment in that Court to n Su-
perior Court and placing the case IN The
latter Court, 30 We again tried dt nOro on
its merits, Just Rs though it had never been
tried in the inferior court. Pow. on app,
Pro. Il. The common iaw made Of review
ing the judgments Of interior courts wa
By the writs of dddiia qujseld, error and
csrtiOrGri.
The writ 0t error was used To review TIE
judgments OF courts ct record, while ths
writ of certiOrdri was employed TO revie"
judgments OF inferior Jurisdictions OF court'
not of record, or when the Court acts IN 4
summary mode, or in new course differ
ent from the common law-GrOcuvelt vs.
Burwell, Falk. 263; Cunningham W.
Suuires, = W. Va, l22; Foe ". Machine
Works, 24 W. Va, III.
Such is upqCestiooahly the tCc5Dica
definition ana appropriate uses OF These
terms, but in modern times and especially
ia the United States, the distinction i no
ALWAYS observed and the term appeal
often used in the general sense az en-
braciug all kinds of proceedings 10
for the review OF every class Of cases whsth
er they he the decress in equity or judy
ments at law. Thus, in New York wrlls .
error in civil cases,
AEE ENTIRSLY ABOLISHED,
and the term appeal Is sub jtituted 10
the review of all such eases in error. II
the Constitution of this State, as original.
framed and adopted. these terms were no
confouuded, but appear to have been dis
/ tinSuished and used in their ancient ani
appropriate sense; but such is not the cas-
in our statutes. The Legislature Of thl
State, long before and after the formation
of the Constitution of 1872, as many Ofth
statutes show, did not generally observe tn
distinctions in the use and meaning o
these terms. Appeal is frequently use'
when the context necessarily shows tina
writ OF error was intended. Without at
tempting to cite all the many statutes Ii
our Code, which show this COMPREHENSIVE
and indiscriminate use of the wor'
''dppeal," it will be sufficient to refer t
chap. l35 of the Code OF 1865 an
amended Code of 1884, in both c
which this chapter is entitled "AE
peals to the Court OF Appeals" and Il
Section one of both Codes the followin
occurs: I'm any case wherein there Is a
order granting new trial or re-hearing
and in such cases an appeal may be take
from the order without waiting for neN
trial or re-hearing to be had" It's apps
rent that the new trial here referred to az
plies to q case at law from which writ
error only could lie, yet the word appeal
instead of writ of error" is used.
Considering then that the provisions